Chan Fung Nga v. Lo Wai Kin and Another

DCMP 1831/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1831 OF 2007

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BETWEEN

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Coram: Deputy District Judge E. Yip in Chambers (open to public)

Date of hearing: 20 March 2008

Date of Handing Down of Decision: 27 March 2008

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Reasons for Decision

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Introduction

1.The Plaintiff is the registered owner of Lot No. 687.  The 1^st Defendant alleges to be its adverse possessor.  The Plaintiff took out an Originating Summons for possession under O. 113 R.D.C.  The 1^st Defendant resists the application.  The issue before me is whether the 1^st Defendant has an arguable defence of adverse possession.   

Undisputed facts

2.It is not in dispute that on 28 October 2006, Lot No. 687 was assigned to the Plaintiff together with the adjacent Lot No. 688 at a price of $336,000 each [133-135; 137-139].  The 1^st Defendant was an occupier and one of the co-owners of Lot No. 686.  Lot 687 was situated between and adjacent to Lot Nos. 686 and 688.  According to the certified plan [141-142], there was a canvass awning over Lot No. 687 [141].   She (the Plaintiff) did not know him (the 1^st Defendant) and had not leased out or licensed Lot 687 or Lot 688 to him or anyone.  He has been occupying Lot No. 687 as a covered carpark.   

The Plaintiff’s basis of claim

3.The Plaintiff produced 2 reports from a firm of authorized land surveyors, Allied Surveyors Limited (“ASL”).  The first report (“1^st Report”) was compiled on 8 May 2007 [150-179] upon site inspections of 23 December 2006 and 13 January 2007 respectively [151] as well as cadastral survey of 13 February 2007 at the Lands Department.  It was to ascertain whether there were any illegal structures on Lot Nos. 687 and 688.    It made the finding that at Lot No. 688 was erected a 2-storey village house.  Lot No. 687 was a bare site with no structures.  The cadastral survey [163] confirmed the same finding.  The photos [175] showed an over-hang cover over (namely canvass awning) Lot No. 687.  The cover emanated from a container-like structure at Lot No. 686. 

4.ASL had also made and submitted to the Lands Department a dimension plan prepared by Ted Chan & Associates Limited upon a survey of October 2001.  It had made the finding of Lot No. 688 a 2 storey-village house, Lot No. 687 “ruin”, and Lot No. 686 “ruin”. 

The 1^st Defendant’s defence

5.The 1^st Defendant made an affirmation on 27 August 2007 [88-99].  He stated that since 1912, Lot No. 686 was owned by his great-grandfather, Lo Nun Fan, who built a village house there.  His (the 1^st Defendant’s) tong brothers and relatives had also lived there. In late 2002, the village house had certain structural problems and was demolished.  He began to park his car there.   

6.Going back to the history since 1912, when the family grew in number, Lo Nun Fan built a hut at Lot No. 687 for cooking.  The government had also demarcated it as an L-shaped lot on a sketch plan [95-97] compiled in 1976 [96].  This should support his claim of adverse possession.

7.In the hearing before me, the 1^st Defendant orally puts forward the allegation, not based on his affirmation, that where he parked his car was Lot No. 686 instead of Lot No. 687.  He submits that the Plaintiff’s surveyor had mixed up various lots of land and the Plaintiff had made a similar mistake in the present action.

The Plaintiff’s reply

8.ASL compiled a second report (“2^nd Report”) on 25 August 2007 [50-69] upon an inspection of 18 August 2007.  It made the finding that there was no L-shaped lot.  The area of Lot No. 686, 435.6 sq. ft., was the same as each of Lot Nos. 688 and 687 [54].  A plan to the same effect was certified by a registered professional surveyor of the Land Surveying Division [69].   Besides, the container-like structure at Lot No. 686 was in fact only a cubicle hut converted from a cargo container [54].

My findings

9.The 1^st Defendant applies for an adjournment:

(a)	to get a document from the government district office to demonstrate that Lot No. 687 was not where he parked his car;
(b)	to engage solicitors to prepare the present case from the very beginning.

As regards (a), he fails to explain why he has not got the said document so far despite his prior knowledge of its availability.  As regards (b), he explains that from the very outset, he has not fully understood the present case.  He has not thought of seeking any assistance from solicitors or the Court as to what he should do.  I refuse his application as delaying tactics.   

10.I have read the 1^st and the 2^nd Reports in detail.  It is true to say that in para. 1.1 of the 2^nd Report [52], the surveyor had mistakenly referred to Lot No. 686 as the subject-lot.  However, this mistake did not recur elsewhere in the entire report because the surveyor always referred to various lots by their lot numbers.  The 1^st Defendant is admittedly not an expert or trained in the surveyors’ field.  He has no foundation for suggesting that the surveyor’s demarcation, based on cadastral survey and site inspection, is incorrect.   

11.Putting the 1^st Defendant’s case the highest, his clansmen might have possessed a hut at Lot No. 687 for cooking.  There is no evidence of his possession of it, nor that he is claiming through or under them.  The presence of an over-hang cover does not confer on him exclusive possession of the land, because people are free to enter the land under the cover.  Nor does the user as a carpark confer on him continuous possession of the land, because people are free to enter the remaining area when a car was parked there, or even the entire area when no car was parked there. 

12.For the sake of argument, even if the government’s plan in May 1976 [96] had demarcated Lot No. 687 as a built site, the certified demarcation plan compiled in October 2001 [183] had clearly revised it as “ruins”.  This suffices to break any chain of adverse possession. 

13.The 1^st Defendant has no arguable defence.  The 2^nd Defendant has not showed up or defended.  I give summary judgment to the Plaintiff for possession of Lot No. 687 in terms of the originating summons.  Costs usually follow the event.  I order the 1^st Defendant to pay costs of the originating summons to the Plaintiff on party and party basis, to be taxed if not agreed.  I order no costs between the Plaintiff and the 2^nd Defendant.  This cost order nisi shall become absolute after 14 days from today. 

Representation:

Mr. Kent Tam of Messrs. Christopher K.Y. Wong for the Plaintiff.

The 1^st Defendant: present, acting in person.

The 2^nd Defendant: absent.